The Ontario government has announced a temporary plan that will provide up to three paid sick leave for COVID-19 for employees. The Ontario COVID-19 Worker Protection Benefit Program will pay up to $200 per day for employees who need time off for certain reasons relating to COVID-19. The program will be retroactive to April 19, 2021 and is slated to end this September.

Employers will be Reimbursed by WSIB

Employers must cover up to three sick days per worker out of pocket, and then apply for reimbursement though the Workplace Safety and Insurance Board (“WSIB”). Applications to WSIB must be made within 120 days of payment to employees.

Employers must pay up to $200 per day of an employee’s ordinary wages when an employee takes a day off work under the Ontario COVID-19 Worker Protection Benefit Program. However, if the employee receives commissions or other performance-based payments, the employer must pay the greater of the employee’s hourly rate or minimum wage. Alternatively, if some other method is used to calculate an employee’s wage, that method may be used.

If one or more of the paid sick days would ordinarily require overtime pay or other premium payment, the employee will only be entitled to their ordinary rate of pay for the sick day. Employees will not be entitled to pay if a sick day is taken on a public holiday.

Eligible Activities for Time Off

Employees will be entitled up to three paid sick leave for COVID-19 related reasons, including:

• going for a COVID-19 test;
• staying home awaiting the results of a COVID-19 test;
• being sick with COVID-19;
• going to get vaccinated;
• experiencing a side effect from a COVID-19 vaccination;
• having been advised to self-isolate due to COVID-19 by an employer, medical practitioner or other authority; or
• taking care of a dependent who is:
  • sick with COVID-19 or has symptoms of COVID-19; or
  • self-isolating due to COVID-19.

Employees will not be required to do any of the following to use sick days under the Ontario COVID-19 Worker Protection Benefit Program:

• present a medical note;

• fill out any forms or applications; or

• take the three sick days consecutively.

Eligible Employees for Paid Sick Leave for COVID-19

Only employees who are (1) covered by the Ontario Employment Standards Act, 2000 and (2) do not already receive paid sick time by their employer are entitled to participate in this program.

This means that Ontario employees who work in a federally-regulated industry and are governed by the Canada Labour Code are not eligible to participate.

This also means that independent contractors and “gig economy” workers will not be able to receive these sick days, because they do not fall within the definition of “employees” under the Ontario Employment Standards Act, 2000. Instead, those workers are referred to the Canada Recovery Sickness Benefit. Officials have also announced that the CRSB could see an increased payment for eligible workers from the current $500 to a total of $1,000 per week.

Employers should be careful when determining whether a worker is an employee or independent contractor for the purposes of the Ontario COVID-19 Worker Protection Benefit Program. Employers that wrongfully classify employees as independent contractors may face penalties. A worker will likely be considered an employee under the Ontario Employment Standards Act, 2000 if they are treated like an employee and are largely controlled by the employer. This will typically be the case where the employer decides the tasks assigned to the worker, the employer controls the method and location of performing the work, the employer provides the equipment and materials to do the work, the worker is financially dependent on the employer, etc.

The fact that a worker may have signed an independent contractor agreement does not conclusively establish that the worker is not an employee. The Ministry of Labour or a court may find that a worker is still an “employee” under the Ontario Employment Standards Act, 2000 even if they have signed a contract stating otherwise.

If your company has any questions about the Ontario COVID-19 Worker Protection Benefit Program, please contact us online or call our office at 416-640-2667.